EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Conviction Records

February 29, 2012

[address]

Dear ____:

This responds to your letter to the U.S. Equal Employment
Opportunity Commission (EEOC or Commission) regarding the Federal Deposit
Insurance Corporation's (FDIC) regulation for FDIC employees in 12 CFR part
336. In your letter, you inquire why the Commission did not comment on the
FDIC's proposed regulation, published in the Federal Register in February 1996.[1]
Specifically, you assert that the Commission had a responsibility to comment on
a proposed provision in the regulation that prevents individuals convicted of
any felony from being employed by the FDIC.[2]

The EEOC's Responsibilities

As you know, the EEOC is the federal agency
responsible for enforcing the federal equal employment opportunity (EEO) laws, including
Title VII of the Civil Rights Act of 1964, as amended (Title VII).[3]
Title VII prohibits employment discrimination on the basis of race, color,
religion, national origin, or sex. The EEOC is also responsible for
“provid[ing] leadership and coordination to the efforts of Federal departments
and agencies to enforce all Federal statutes, Executive orders, regulations,
and policies which require equal employment opportunity without regard to race,
color, religion, sex, national origin, age or handicap.”[4]
In conjunction with its coordination duties, the EEOC may, in its discretion, choose
to consult with other agencies or departments as they develop rules or
regulations that implicate the federal EEO laws. The EEOC's decisions about this
process are confidential because they are part of the EEOC's and the
government's deliberative process. Accordingly, we have no comment on your
specific question.

Title VII and the Use of Criminal Records in
Employment Decisions

The Commission
has issued several written policies that apply Title VII principles to
employers' use of criminal records when making employment decisions.[5]
Under Title VII, covered employers must treat similarly situated individuals
the same with respect to employment opportunities if they have comparable
criminal records. Additionally, because disproportionate numbers of African
Americans and Hispanics have criminal records, the use of such information to
make employment decisions is likely to have a disparate impact on them. Under
Title VII, this means that a criminal record exclusion must be “job related for
the position in question and consistent with business necessity.”[6]
Commission guidance identifies three factors to
consider when making this assessment: (1) the nature and gravity of the offense(s); (2) the time that has passed
since the conviction and/or completion of the sentence; and (3) the nature of
the job held or sought.[7]

The FDIC's
Employment Regulation

The
Resolution Trust Corporation Completion Act of 1993 (the Completion Act or the
Act) amended section 12 of the Federal Deposit Insurance Act, 12 U.S.C. § 1822,
to “prohibit any person [from entering into any contract, becoming employed, or
providing any service for or on behalf of the FDIC] who does not meet minimum
standards of competence, experience, integrity, and fitness.”[8] The Completion Act expressly
directs the FDIC to issue regulations prohibiting any person from being employed
with the agency who has been convicted of a felony.[9] In February and June
1996, the FDIC published a proposed and final regulation in the Federal
Register prohibiting the FDIC from employing anyone with a felony conviction.[10] It is clear that the FDIC
issued this regulation pursuant to the Completion Act.

Finally, in your letter, you question Congress's
constitutional authority to enact the amendments to section 12 of the Federal
Deposit Insurance Act. The constitutionality of federal statutes and
congressional authority is outside the Commission's purview. Therefore, we
offer no comment on these arguments.

Please note that
this is an informal discussion of the issues you raised and does not constitute
an official opinion of the EEOC.

Sincerely,

s/

Peggy
R. Mastroianni

Legal
Counsel

[1]See 61 Fed. Reg. 5956 (proposed Feb. 15, 1996)(to be
codified at 12 C.F.R. pt. 336). The final rule was published in the Federal
Register on June 6, 1996. See 61 Fed. Reg. 28,725.